New Jersey Model Jury Instructions (Civil), Foreseeability (As Affecting Negligence) § 5.10B (2023). Since “all remedies available in commonlaw tort actions are available to a party who prevails under the CEPA,” (Harrington v. Lauer, 888 F.Supp. 616, 621 (D.N.J. 1995) (citing N.J.S.A. 34:19-5)), whether relocation expenses may be covered by common-law tort remedies is an issue that needs to be argued before the Court.
Similarly, Plaintiff's allegations of a Fifth Amendment violation also fail, as the Fifth Amendment pertains to actions undertaken by the federal government. Harrington v. Lauer, 888 F. Supp. 616 (D.N.J. 1995). Because Plaintiff has not established a constitutional violation, Plaintiff can likewise not assert Monell claims.
Similarly, Plaintiff's allegations of a Fifth Amendment violation also fail, as the Fifth Amendment pertains to actions undertaken by the federal government. Harrington v. Lauer, 888 F. Supp. 616 (D.N.J. 1995). For these additional reasons, Counts II, IV, and XIII of Plaintiff's Amended Complaint are dismissed. B. Dismissal Of Plaintiff's Sexual Harassment Claim (Counts V And VI)
An employment contract can create a property interest for the term specified in the contract if the contract states that the employee may only be terminated for cause. See Harrington v. Lauer, 888 F. Supp. 616, 619 (D.N.J. 1995). However, the property interest the contract creates is "the right to receive the full amount of compensation provided for in [the] contract."
Although Plaintiffs have raised a due process claim in respect of new, or yet-to-be negotiated, contracts, anticipated employment terms are not protected by due process because there would be no "taking" of a recognized "property interest". Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972) ("To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it."); see also Harrington v. Lauer, 888 F. Supp. 616, 619 (D.N.J. 1995) (finding that a Superintendent only has a property interest in compensation due under an existing contract). Consequently, the Court finds that Plaintiffs have failed to demonstrate a likelihood of success on the merits of their due process claim.
Indeed, the case law the Court located was to the contrary. See, e.g., Royster v. Board of Trustees of Anderson County Sch. Dist. Number 5, 774 F.2d 618, 621 (4th Cir. 1985) (public employee's property interest does not extend to "the right to actively engage in and execute the duties of [an] office"); Harrington v. Lauer, 888 F.Supp. 616, 620 (D.N.J. 1995) (holding that although appellant "had a protected property interest in the right to receive the full amount of compensation provided for in his contract, he did not have a protected property interest in the right to execute his duties as superintendent for the duration of his contract"); City of Annapolis v. Rowe, 123 Md. App. 267, 292, 717 A.2d 976, 988 (1998) (holding that suspended employee had no constitutionally protected property interest in actually performing job); Gates v. Sicaras, 706 F.Supp. 169, 172-73 (D. Conn. 1989) (stating that "[p]laintiff fails, however, to offer any evidence pointing to a claim of entitlement to such benefits of employment beyond his regular salary"). Accordingly, under Tenth Circuit law, Plaintiff was not entitled to due process protections ( i.e. an explanation of the employer's evidence, adequate notice and an opportunity to be heard) prior to being suspended with pay and Defendants' request for dismissal of Plaintiff's procedural due process cl
In the context of employment in public education, a property interest can derive from a contract that provides for continued employment and that can be terminated only for good cause. See Harrington v. Lauer, 888 F. Supp. 616, 619 (D.N.J. 1995). In the present case, plaintiff was a tenured teacher, and therefore under New Jersey law, plaintiff could not be dismissed except for inefficiency, incapacity, or conduct unbecoming a teaching staff member or other just cause.
When a term employee is terminated before his contract ends but he is fully compensated for the entire term of the contract, the employee cannot recover under § 1983. See Royster v. Board of Trustees of Anderson County Sch. Dist. No. 5, 774 F.2d 618, 621 (4th Cir. 1985); Harrington v. Lauer, 888 F. Supp. 616, 619-20 (D.N.J. 1995); Schneeweis v. Jacobs, 771 F. Supp. 733, 736-37 (E.D.Va. 1991) (coach suspended during term of her contract but fully compensated was not deprived of a property right). It is uncontroverted that Mr. Puchalski received the total amount due him under his contract.
In connection with these two due process claims, we also agree with the Defendants that the only process that was due Poteat was the payment required by his employment agreement. See Harris v. Board of Education, 105 F.3d 591 (11th Cir. 1997); Royster v. Board of Trustees, 774 F.2d 618 (4th Cir. 1985); Cannon v. Beckville Independent School District, 709 F.2d 9 (5th Cir. 1983); Harrington v. Lauer, 888 F. Supp. 616 (D.N.J. 1995). We further note that the Plaintiff's reliance on Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), is misplaced. Loudermill requires a pretermination hearing only for employees who could not be fired except for cause.
Likewise, those portions of counts one through four which are premised directly upon the Fifth and Fourteenth Amendments must be dismissed as well. The Fifth Amendment governs the conduct of the federal government and federal employees, and does not regulate the activities of state officials or state actors. See Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959); Shoemaker v. City of Lock Haven, 906 F. Supp. 230, 238 (M.D.Pa. 1995) (noting that the Fifth Amendment "does not apply to the acts or conduct of the States, their agencies, subdivisions, or employees"); Harrington v. Lauer, 888 F. Supp. 616, 619 (D.N.J.1995) ("The Fifth Amendment is a limitation on the federal government and does not apply to state actions."); Huffaker v. Bucks County District Act Attorney's Office, 758 F. Supp. 287, 290 (E.D.Pa.1991). As plaintiff is not arguing that Rutgers, the State University of New Jersey, is indeed a federal entity for purposes of the Fifth Amendment, plaintiff's argument that she may assert a Fifth Amendment claim through the Fourteenth Amendment must be rejected.